Opinion of the Court
FLETCHER, Judge:
For a period of 81 days prior to his general court-martial *, appellant was legally confined. Appellant now argues on this granted appeal that this period should be credited against the 24 months’ sentence to confinement awarded him. The basis of his claim is grounded in DOD Instruction 1325.4 (October 7, 1968) which states, inter alia, that procedures employed by the military services for computation of sentence are to be in conformity with those published by the Department of Justice. Appellant argues that since the Department of Justice, following the mandate of 18 U.S.C. § 3568, grants such credit, the military is bound to do likewise. In the absence of any clear signal of intent otherwise on the part of the Secretary of Defense, we will read his instructions as they appear on their face and agree with appellant.
In appellant’s case, neither the jury nor the convening authority noted specifically that they gave appellant credit on the sentence to confinement at hard labor. Clearly, however, the military judge instructed the jury:
[Y]ou should consider the nature and duration of the accused’s pretrial restraint. You will recall that the accused was confined at Pearl Harbor ... and has continued in continuous pretrial confinement until this day. Now, you must take into consideration this pretrial confinement; however, you need not give credit for this [127] pretrial confinement on a day for day basis or on any basis — excuse me; on the basis of any other formula or any mathematical computation, but you must consider it in arriving at an appropriate sentence.
These specific instructions meet the demands of the law expressed in our opinion in United States v. Davidson, 14 M.J. 81 (C.M.A.1982). We, however, expressly declined there to address the effect of the aforementioned instruction of the Secretary of Defense. Thus, this case presents the specific problem therein exempted.
Our analysis begins with the observation that 18 U.S.C. § 3568 specifically exempts trial by court-martial from its provisions:
The Attorney General shall give any . . . person [sentenced to imprisonment] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
(Emphasis added.)
This statute has been determined by the United States Navy Court of Military Review to exclude court-martial accused from a right to pretrial-confinement credit. Hart v. Kurth, 5 M.J. 932 (N.C.M.R.1978). The Government rests its case on this exclusion, arguing that no right thus exists for a right of sentence credit for pretrial confinement.
However, to the contrary, appellant cites DOD Instruction 1325.4 (October 7, 1968), which states in pertinent part, at page 22:
6. Computation of Sentences. Procedures employed in the computation of sentences will be in conformity with those published by the Department of Justice, which govern the computation of sentences of federal prisoners and military prisoners under the jurisdiction of the Justice Department.
Appellant argues that while Congress decided not to make § 3568’s provisions mandatory for the military, the Secretary of Defense has, in contrast, voluntarily adopted them on the basis of the foregoing instruction. To evaluate the validity of this claim, we must review certain legislative and instructional events that antedate the most recent version of this instruction.
In 1955, when this instruction was originally promulgated, there were two groups of military prisoners in the Attorney General’s custody — those tried in District Courts and transferees from military prisons after conviction by court-martial. The former were governed by the Federal procedures for credit; the latter by those imposed by the military. At that time there was no difference in pretrial credit extended to either group, inasmuch as the Justice Department did not extend to District Court convicts credit for pretrial confinement.
In 1960 Congress passed an amendment (the “Provided, That ...” clause below) to 18 U.S.C. § 3568. Thereafter, the section read:
The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.
(Emphasis partly supplied.) Act of September 2, 1960, Pub.L. No. 86-691, § 1(a), 74 Stat. 738.
This statute covered only those prosecuted in District.Court who were unable to make bail. No claim has been made that DOD Instruction 1325.4 made this provision applicable to the military.
[128] In 1966 the Bail Reform Act was passed. It provided in pertinent part:
The Attorney General shall give any . .. person [sentenced to imprisonment] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
(Emphasis added.) Act of June 22, 1966, Pub.L. No. 89-465, § 4, 80 Stat. 217. Ability to make bail was no longer a consideration.
Then the Military Correctional Facilities Act of 1968, Pub.L. No. 90-377, 82 Stat. 287, 10 U.S.C. § 951-54, was passed on July 5, 1968. It speaks not of sentence computation, but of uniform military administration. As a result, the 1955 version of DOD Instruction 1325.4 was cancelled, rewritten, and reissued on October 7, 1968. However, the paragraph on sentence computation procedures remained the same as it was in the 1955 version.
The procedures employed by the Justice Department for other prisoners are contained in rules promulgated by the United States Parole Commission and the Bureau of Prisons. Parole Commission Rules and Regulations, Rule 2.10(a), provides:
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Opinion of the Court
FLETCHER, Judge:
For a period of 81 days prior to his general court-martial *, appellant was legally confined. Appellant now argues on this granted appeal that this period should be credited against the 24 months’ sentence to confinement awarded him. The basis of his claim is grounded in DOD Instruction 1325.4 (October 7, 1968) which states, inter alia, that procedures employed by the military services for computation of sentence are to be in conformity with those published by the Department of Justice. Appellant argues that since the Department of Justice, following the mandate of 18 U.S.C. § 3568, grants such credit, the military is bound to do likewise. In the absence of any clear signal of intent otherwise on the part of the Secretary of Defense, we will read his instructions as they appear on their face and agree with appellant.
In appellant’s case, neither the jury nor the convening authority noted specifically that they gave appellant credit on the sentence to confinement at hard labor. Clearly, however, the military judge instructed the jury:
[Y]ou should consider the nature and duration of the accused’s pretrial restraint. You will recall that the accused was confined at Pearl Harbor ... and has continued in continuous pretrial confinement until this day. Now, you must take into consideration this pretrial confinement; however, you need not give credit for this [127] pretrial confinement on a day for day basis or on any basis — excuse me; on the basis of any other formula or any mathematical computation, but you must consider it in arriving at an appropriate sentence.
These specific instructions meet the demands of the law expressed in our opinion in United States v. Davidson, 14 M.J. 81 (C.M.A.1982). We, however, expressly declined there to address the effect of the aforementioned instruction of the Secretary of Defense. Thus, this case presents the specific problem therein exempted.
Our analysis begins with the observation that 18 U.S.C. § 3568 specifically exempts trial by court-martial from its provisions:
The Attorney General shall give any . . . person [sentenced to imprisonment] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
(Emphasis added.)
This statute has been determined by the United States Navy Court of Military Review to exclude court-martial accused from a right to pretrial-confinement credit. Hart v. Kurth, 5 M.J. 932 (N.C.M.R.1978). The Government rests its case on this exclusion, arguing that no right thus exists for a right of sentence credit for pretrial confinement.
However, to the contrary, appellant cites DOD Instruction 1325.4 (October 7, 1968), which states in pertinent part, at page 22:
6. Computation of Sentences. Procedures employed in the computation of sentences will be in conformity with those published by the Department of Justice, which govern the computation of sentences of federal prisoners and military prisoners under the jurisdiction of the Justice Department.
Appellant argues that while Congress decided not to make § 3568’s provisions mandatory for the military, the Secretary of Defense has, in contrast, voluntarily adopted them on the basis of the foregoing instruction. To evaluate the validity of this claim, we must review certain legislative and instructional events that antedate the most recent version of this instruction.
In 1955, when this instruction was originally promulgated, there were two groups of military prisoners in the Attorney General’s custody — those tried in District Courts and transferees from military prisons after conviction by court-martial. The former were governed by the Federal procedures for credit; the latter by those imposed by the military. At that time there was no difference in pretrial credit extended to either group, inasmuch as the Justice Department did not extend to District Court convicts credit for pretrial confinement.
In 1960 Congress passed an amendment (the “Provided, That ...” clause below) to 18 U.S.C. § 3568. Thereafter, the section read:
The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.
(Emphasis partly supplied.) Act of September 2, 1960, Pub.L. No. 86-691, § 1(a), 74 Stat. 738.
This statute covered only those prosecuted in District.Court who were unable to make bail. No claim has been made that DOD Instruction 1325.4 made this provision applicable to the military.
[128] In 1966 the Bail Reform Act was passed. It provided in pertinent part:
The Attorney General shall give any . .. person [sentenced to imprisonment] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
(Emphasis added.) Act of June 22, 1966, Pub.L. No. 89-465, § 4, 80 Stat. 217. Ability to make bail was no longer a consideration.
Then the Military Correctional Facilities Act of 1968, Pub.L. No. 90-377, 82 Stat. 287, 10 U.S.C. § 951-54, was passed on July 5, 1968. It speaks not of sentence computation, but of uniform military administration. As a result, the 1955 version of DOD Instruction 1325.4 was cancelled, rewritten, and reissued on October 7, 1968. However, the paragraph on sentence computation procedures remained the same as it was in the 1955 version.
The procedures employed by the Justice Department for other prisoners are contained in rules promulgated by the United States Parole Commission and the Bureau of Prisons. Parole Commission Rules and Regulations, Rule 2.10(a), provides:
Service of a sentence of imprisonment commences to run on the date on which the person is received at the penitentiary, reformatory, or jail for service of the sentence: Provided, however, that any such person shall be allowed credit toward the service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.
(Emphasis added.) 28 C.F.R. § 2.10(a) (1980). U.S.B.P. Policy Statement 7600.59, para. 4.b.(l), adopts the same rule.
Before us, during oral argument in this case, appellate government counsel urged us, by way of subtle argument, that DOD Instruction 1325.4 is using the term sentence computation procedure in a special and limited way; that is, the Secretary of Defense intended merely to incorporate the employment of the same method used by the Justice Department to compute the sentence term after the time credit is automatically there given for pretrial confinement. While this argument has logical appeal, we are unable to find any supporting evidence that such was the intention of the Secretary in this exercise of his instructional powers.
Therefore, in the absence of clarification, we must be judicially prudent and read the instruction as written, as voluntarily incorporating the pretrial-sentence credit extended to other Justice Department convicts. After all, as both counsel conceded on appeal, all other aspects of the Justice-Department system are more specifically mentioned and explicitly incorporated via this instruction. It is improbable that this instruction, adopting a unified system, would be promulgated without one of the foundation blocks. In any event, read on its face, the contrary is indicated.
Reading the Secretary of Defense’s instruction in this way is in perfect accord with a recommendation of the American Bar Association:
Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed.
ABA Standards, Sentencing Alternatives and Procedures, § 18-4.7(a) (1979).
This ruling will be applied retroactively to cases under review as to sentences to confinement still being served.
The decision of the United States Navy-Marine Corps Court of Military Review is [129] affirmed except to the extent that it holds that appellant is not entitled to sentence credit for pretrial confinement. Appellant will be credited with service of 81 days.